Gatorade Fit Drinks “Healthy” Claims and Fortification California Class Action

PepsiCo, Inc. offers consumers a line of Gatorade Fit drinks that it claims represent “Real Healthy Hydration” that are an “Excellent Source of Vitamin[s] A & C.” But the complaint for this class action alleges that the drinks are misbranded, because they do not fulfill certain conditions that are necessary in order for them to make these kinds of claims.

The class for this action is all persons in California who, at any time between February 24, 2019 and the date the class is notified in this case, bought, for personal or household use and not for resale or distribution, any of the Gatorade Fit products.

Page 3 of the complaint shows five bottles of the product, in the flavors Tropical Mango, Citrus Berry, Watermelon Strawberry, Cherry Lime, and Tangerine Orange.

As to the drinks’ nutritional content, the complaint alleges, “Gatorade Fit is essentially water that is flavored with a small amount of watermelon juice concentrate and citric acid and sweetened with stevia leaf extract” to which electrolytes are added. The drinks are fortified with various substances that provide vitamin C, vitamin B3, vitamin A, vitamin B5, and vitamin B6, the complaint alleges, to the extent that 500 milliliters of any of the drinks provides 100% of the Food and Drug Administration’s (FDA’s) daily recommended value of these vitamins.

“Absent fortification,” the complaint alleges, “no Gatorade Fit variety would provide 10% or more vitamin A or C, and none are a significant source of calcium, iron, protein or fiber either.”

The claims made for the drinks are nutrient content claims, the complaint alleges, which in general are not allowed on the labels of food; they are, the complaint claims, “only permitted when a claim is defined by regulation and the requirements for making the claim are met.”

As to the claim “Real Healthy Hydration,” the complaint alleges that, because it uses the term “healthy,” it must meet certain requirements in the Code of Federal Regulations. The complaint alleges that, in order to use the term, the food or drink must contain at least 10% of certain set or recommended amounts “of one or more of vitamin A, vitamin C, calcium, iron, protein or fiber.” Because the drinks do not contain 10% of any of these substances without the fortification, they do not meet this requirement.

Fortification is also regulated. The complaint claims that fortification is permitted under only four circumstances, which it lists with quotations from the regulations: (1) “to correct a dietary insufficiency recognized by the scientific community,” (2) “to restore such nutrient(s) to a level(s) representative of the food prior to storage, handling and processing,” (3) “to avoid nutritional inferiority” when replacing a traditional food, and (4) “in proportion to the total caloric content … to balance the vitamin, mineral, and protein content[.]”

According to the complaint, none of them apply to the fortification of the Gatorade Fit drinks with vitamins A and C.

Article Type: Lawsuit
Topic: Consumer
Tags: Deceptive Advertising, Deceptive Labels, Fortification, Representations Imply Product Is Healthy